In the UK the holiday company Center Parcs have stopped advertising in the UK newspaper, The Daily Mail. The decision was made following a comment article by one of the newspaper’s columnists, Richard Littlejohn who was critical of a married gay couple (one partner of whom is the UK’s diving athlete Tom Daly) announcing they were expecting a child. In the article Littlejohn claims that children benefit most from being raised by a man and a woman. In making this decision, Center Parcs were responding to a complaint from a person who tweeted in effect that by advertising in the Daily Mail Center Parcs was supporting homophobia. Closely following this decision, London’s Southbank Centre announced it would no longer be advertising in the Daily Mail as the newspaper’s values were not compatible with those of the Southbank Centre.

There has been a movement where people who are offended by comment’s not in line with their own and express this on the likes of social media is gathering increasing influence on what and what cannot be said, printed or, more importantly, what values and beliefs a person can hold in society. In a liberal democracy such moves are dangerously impinging on a very important right, the right to freedom of expression. In most European countries this is governed by article 10 European Convention on Human Rights (ECHR) and article 11 European Union’s Charter of Fundamental Rights and Freedoms. In the US this right is enshrined in the first amendment of the 1791 Bill of Rights and in Canada under section 2 Canadian Charter of Rights and Freedoms. In 1980 Australia incorporated the United Nations’ international Covenant on Civil and Political Rights 1966 (ICCPR) which was scheduled in the Australian Human Rights Commission Act 1986. Article 19 ICCPR states everyone has the right to freedom of expression, adding the right includes freedom to speak, receive and impart information of all kinds.
This is not a carte blanche right to say whatever you want. For example article 10 ECHR is a qualified right where the state can interfere with that right when it is prescribed in and law and necessary in a democratic society when it is:

1. in the interests of national security, territorial integrity or public safety;
2. for the prevention of disorder or crime;
3. for the protection of health or morals;
4. for the protection of the reputation or rights of others;
5. for preventing the disclosure of information received in confidence; or,
6. for maintaining the authority and impartiality of the judiciary.

‘Freedom of speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.’ ([My emphasis]

In essence, provided what a person says does not provoke violence, if it offends you it does not violate the right to freedom of expression. Like many others I am offended by comments such as those espoused by Islamist groups like Islamic State or Al Qaeda or those espoused by extreme far right groups, views expressed by certain politicians and pressure groups. Provided that comments I see as offensive do not glorify or provoke violence I accept them as being part of the rich tapestry that creates a liberal democracy and as such I would always advocate it is important for them to have their right to expression and views. Today I notice that from politicians to senior managers of public and private companies they are guarded in what they say for fear of offending the easily offended. Another problem for me is how the views of the easily offended is represented in various social media sites. I have noticed for example in fear of offending Twitter followers or Facebook friends there is a degree of acquiescing to others’ views.

In 2009 the far right political party, the British National Party’s leader Nick Griffin appeared on the BBC’s Question Time programme, There was an outrage that the BBC was allowing this due to the (and I quote Sedley LJ) the heretical, the unwelcome and the provocative views held by Griffin and his party. In my view I was pleased the BBC allowed this as I knew that on this type of programme he would make a fool of himself and people would see Griffin for the bigoted racist he is. Griffin did get tied up in knots resulting in his views becoming incomprehensible and basically a laughing stock. It could be argued this was the start of the demise of the BNP. There are times to let people have their say and in doing so it allows people to see right through their argument, which is what happened on this occasion.

What did Littlejohn say in his Daily Mail column that has caused Center Parcs and the Southbank Centre to withdraw their adverts in the newspaper, along with the pressure group Stop Funding Hate to regularly tweet the names of companies that advertise in the Daily Mail? In the article Littlejohn said he supported civil partnerships, and would prefer a child to be fostered by loving gay couples rather than be condemned to rot in state-run institutions. He added, ‘That said, and despite the fact that countless single parents do a fantastic job, I still cling to the belief that children benefit most from being brought up by a man and a woman’. While I disagree with the latter part of this comment, one can see he is trying to balance his view and in no way is he provoking violence.

Personally I do not agree with the journalistic content of the Daily Mail. For many years it has always run contentious articles and its slant on its news reports has been equally contentious. This is a polite way of saying I get offended by what is regularly reported in the Daily Mail and I disagree with a lot of its commentary. By preventing companies from advertising in the Daily Mail is this in effect saying that Daily Mail readers are prohibited from taking various services or purchasing certain goods, such as in this case is Center Parcs saying that Daily Mail readers are not welcome at its venues? Even the newspaper I regularly read, I do so with a questioning mind as to its sources and reliability in reporting due to the bias held by the editor and the newspaper’s proprietors. In a liberal democracy it is important to have a free press and in doing so that means accepting that the Daily Mail has a right to exist and publish its views just like other newspapers, but you don’t have to buy it or visit their website. I suggest that when appropriate stop being so easily offended and laugh at some of the outlandish and ludicrous reporting in the likes of the Daily Mail.

Nikola Cruz, a 19 year old, has been charged with the murder of 17 people who it is alleged Cruz shot at Majory Stoneman Douglas High School in Parkland, Florida.
This incident raises two important issues. One relates to US gun control as once more we have witnessed another massacre of innocent people, which from the view of this UK citizen it is incomprehensible as to why the US has not introduced legislation bringing in stricter and tighter conditions over gun ownership and its use. Clearly the influence of the US’ National Rifle Association must be strong on many US politicians, who from my perspective appear to see votes more important than their constituents’ lives. A reliance on the second amendment of the 1791 Bill of Rights that states, ‘A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed’ in 2018 seems a rather outdated constitutional right. Written at a time when the US did not have a standing army, as the US now has one of the world’s most powerful military this right seems to be obsolete. This is not the main focus of this blog, it is a second issue that this murder raises regarding Cruz’s alleged association with the far right, in particular the group Republic of Florida (RoF). If proved it demonstrates how influential these groups are in inspiring individuals to carry out acts of murder and violence in their name be they direct to by that group or not.

A white supremacist group, RoF has claimed that Cruz was associated with them. This is an allegation that is currently being investigated and has yet to be confirmed. That said over the last few years globally there has been a rise in murder and violent acts carried by individuals influenced by the far right narrative. This has included the killing of six people at a mosque in Quebec, Canada in January 2017 by Alexandre Bissonnette. In the UK examples include the conviction of a member of the now proscribed group National Action, Zak Davies for attempt murder, Thomas Mair for the murder of UK MP Jo Cox and more recently Darren Osborne for the murder and injury to Muslim worshippers outside a mosque in Finsbury Park, London. In 2017 the US witnessed the killing of Heather Heyer who was protesting against a white supremacist rally in Charlottesville, Virginia where it is alleged that James Field (who allegedly has Nazi sympathies) drove into the protestors killing Heather Heyer and injuring 35 others.

The question is if other states should follow the UK’s lead and start proscribing certain far right groups as terrorist organisations? In raising this question concerns will be expressed as to how this would be seen as a step limiting certain rights. In Europe these are mainly governed by articles 11, freedom of expression and article 12, freedom of association under the EU’s Charter of Fundamental Rights and Freedoms (articles 10 and 11 respectively under the Council of Europe’s European Convention on Human Rights). In the US these rights come under amendment 1 of the 1791 Bill of Rights. In a democracy it is important that views can be expressed freely and to associate with whoever we want to without fear of retribution from the state. As Sedley LJ said in the UK case Redmond-Bate v Director of Public Prosecutions [1999] EWHC Admin 733:
‘Freedom of speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.’
The phrase that is important in this judgement is, ‘…provided it does not tend to provoke violence’. Note this is not to promote violence, just merely to provoke violence, that is merely to inspire someone to carry out violence.

It can be argued that the RoF (formed in 2014) promotes violence. Under the RoF’s ten codes, code 3 promotes a willingness to ‘wage battle’ by encouraging its followers to maintain a level of fitness saying, ‘You cannot fight if you are tired and weak’. Code 7 promotes its followers to be part of an organised militia. RoF has contact and associations with other white supremacist groups including Atomwaffen. Atomwaffen openly describes itself as a neo-Nazi group and as seen on their website the group provokes violence in achieving their aims. In Canada a recent study revealed that there are approximately 100 extreme far right groups active in Canada including Soldiers of Odin, the Alt-Right Group Heritage Front, Blood and Honour and based in Quebec, La Meute (translated as ‘Wolf Pack’), who between 1985 to 2014 were responsible for more than 120 violent incidents. In Australia a number of far right groups exist including Aryan Nation, Combat 18, National Democratic Party for Australia, Soldiers of Odin and United Patriots Front. Formed in late 2016 one of the more recent extreme far right groups to emerge in Australia is Antipodean Resistance. Antipodean Resistance is also openly a neo-Nazi group that appears to have based itself on the UK group National Action. The language and imagery used between Antipodean Resistance, National Action and groups like Atomwaffen are identical.
Earlier this week the UK’s Home Secretary, Amber Rudd revealed that she is encouraging internet service providers to use software that blocks Islamist extremist content. While the Islamist narrative is equally as vile as that of the far right, perhaps globally politicians should look at encouraging companies to use software that also blocks far right extremist content. Maybe other states should go further and proscribe those far right groups that are openly provoking violence. In doing so, this would give the police much wider powers and offences in which to deal effectively with the threat far right groups are posing to the security of citizens in many states. If it is later evidenced that Cruz had connections with RoF surely this is also evidence that certain far right groups should be prevented from carrying out their activities that is attractive to the disenchanted in society and, those like Cruz, vulnerable to being drawn towards violent activity. Rightly, if these were Islamist inspired groups, there would be more vociferous calls from politicians and the public for something to be done. It should be the same for far right groups that promote or merely provoke violence too.

Two UK citizens, Kotey and Elsheikh, were captured by US backed Kurdish forces (part of the Syrian Democratic Forces) in January 2018 and handed over to US Special Forces. Kotey and Elsheikh were part of Islamic State’s execution cell and worked with two other UK citizens, Emwazi (also known as Jihadi John)who was killed in a drone attack in Syria November 2015 and Aine Davis, who was convicted of terrorism offences in as Turkish criminal court in May 2017.

The execution cell was responsible for torturing and killing its captives, including captives from Europe and the US, notably killing David Haines and Alan Henning from the UK and James Foley, Alan Sotloff and Peter Kessig from the US. It is reported that Kotey and Elsheikh allegedly took part in mock executions, waterboarding and crucifixions of their captives as well as being party to the killing that took place.

The question is how should they be dealt with? Effectively being in US custody they could be transferred to the detention centre in Guantanamo Bay, but this would not be a positive move due to the Centre’s reputation. If the US does this it could be counterproductive and be used as propaganda by Islamic State and other Islamist inspired groups to show that there is one rule for US citizens and one for Muslims from other states. This can be a powerful recruitment tool.

The best move the US can make is to transfer them to the US to face trial in a criminal court for the murder of the US citizens killed by Islamic State’s execution cell. It would still be a terrorist trial as the alleged motive behind their actions would be the Islamist cause, which is a terrorist cause. Many states like the US, the UK, Canada and Australia have legally defined terrorism to include terrorism in states around the world. Even if no evidence can be found that either Kotey or Elsheikh actually killed the captives, their involvement with Emwazi who did will through the criminal law principle of joint criminal enterprise be sufficient to try them for murder.

By having a potential criminal trial will not just ensure due process takes palace, it will demonstrate to the world that justice is being done as Kotey and Elsheikh’s rights will be carried out. They will have access to qualified defence lawyer, have trial by jury and in the US criminal trials they have very strict rules in appointing jurors to ensure a fair trial. Also, in a criminal trial Kotey and Elsheikh will have the opportunity to present their evidence. In my opinion this would be the preferred approach in dealing with these two men.

Should they go to Guantanamo Bay the UK government should take steps to extradite Kotey and Elsheikh to the UK to face trial for the murder of David Haines and Alan Henning. One factor involved in this process would be the US government, in particular the current US President. Donal Trump has taken a strong stance against Islamist inspired terrorism, both in the US and abroad. He has expressed strident views on this issue, especially via his personal Twitter account. This included retweeting three tweets made by the extreme far right group Britain First. This did cause a diplomatic incident between the US and the UK, but President Trump has since states that he had no idea who the group were when he retweeted their tweets.

If President Trump wants to demonstrate to the world how the US deals with terrorists, having a criminal trial will show how rights in western states’ democracies apply to all by being dealt with fairly and equitably. As Lord Justice Gordon Hewart said in R v Sussex Justices ex parte McCarthy (1924), ‘Not only must justice be done; it must also be seen to be done’.

I discuss the legal issues contained in this blog in more detail in my book ‘Terrorism: Law & Policy’ being published by Routledge in March 2018.

I discuss this news story and the legal issues in my interview with BBC News Channel.

Darren Osborne has been convicted of murder and the attempted murder of nine others when he drove a van into Muslim worshippers at Finsbury Park in June 2017. Osborne received a life sentence where he will serve a minimum of 43 years in prison. While tried for murder, as it usual with terrorist incidents when persons are killed, the political cause (here extreme far right) was a sentencing factor and the trial judge, Mrs Justice Cheema-Grubb stated that Osborne’s actions was a terrorist attack as he intended to kill.

It is important we recognise the dangers the extreme far right pose to the security and safety of citizens, not just in the UK but globally. Extremism in all its forms from Islamist to extreme far right.

In the UK, while the UK extreme far right group National Acton was proscribed in December 2016 as a terrorist organisation (that was followed the groups morphed after National Action was proscribed, Scottish Dawn and NS131), there are other extreme far right groups whose extremist message is influencing others towards violence carried out in their name. That violence is invariably targeted towards minorities, that for many far right groups does not just focus on race and religion but sexuality and political views.

While Britain First’s mission statement does not explicitly state it is anti-Islamic, there is a picture of Golding and Fransen with their supporters with a banner saying ‘Time to fight Islamic terror’. The statement says Britain First’s policies are pro-British, loving ‘our people, our heritage and culture’, defending them no matter what odds the group faces, the question is who is ‘our’? The statement is clear the group is anti-foreigner,. anti-asylum seeker and anti-migrant, adding that Christianity, that the group sees as the bedrock and foundation of Britain’s national life, is under ‘ferocious assault, with Christians facing discrimination and persecution.

It is perhaps time now for the UK government to proscribe Britain First as their narrative does influence others to believe their skewed and warped ideology. The problem of them being free to release anything they want to say is the group can grasp any legitimacy of its narrative, especially when that legitimacy comes from an unexpected source like the US President. In November 2017 US President, Donald Trump retweeted three of Fransen’s tweets that purported to show actions of Muslims , with those actions being shown to be a false depiction of what Fransen was using them for. Fransen jumped on this using it to legitimise Britain First’s narrative claiming that the US President supports them. This incident caused a bitter row between the UK Prime Minister, Theresa May and Donald Trump. Donald Trump has since said he is prepared to apologise for retweeting Britain First’s tweets, claiming that he had no knowledge of what the group stands for.

Although small in membership numbers, groups like Britain First and National Action do inspire others to carry out violent attacks. This is why they should all be proscribed a it gives the security services and the police wider powers and a wider number of offences to deal with the far right. This is seen in the number of arrests there have been on members of National Action, where even in January 2018 six alleged members of National Action were arrested in the UK. In addition to the wider powers being proscribed organisations reduces the platforms from which to spread their damaging and dangerous narrative with which to inspire those less aware of current affairs or special issues from carrying out acts of violence. Anything that does this has to be a positive move.

It is important counter-narratives are developed and used against all forms of extremism and this is an important strand of Prevent strategies. While Prevent has had its problems in the past, there is no credible alternative to use at the moment and the strategy does work. We should all work towards the goal of helping those who are vulnerable to being drawn towards terrorism by producing an effective counter-narrative and making as hard as possible for any extremist group to get their message out.

The head of the UK’s National Cyber Security Centre, Ciaran Martin has said that so far the UK has been lucky to avoid a ‘category one’ cyber attack targeting the UK’s infrastructure. This can range from UK defence systems, energy companies and financial institutions (both public and private). Martin’s warning follows on from the UK’s Chief of General Staff, General Sir Nick Carter who echoes similar concerns, in particular that posed by recent Russian activity, both militarily and in cyber space.

In January 2018 these concerns have been made public by a number of authorities including the Royal United Services Institute (RUSI) where in early January at RUSI Dr Beyza Unal and Dr Patricia Lewis presented a paper examining the threats and vulnerabilities of cyber security, especially in relation to nuclear weapons systems. They presented the consequences a cyber attack would have, including the problems it would pose to the UK’s Trident missile system. Essential in helping to prevent a cyber attack is in having constant risk assessments to monitor potential weak areas and to have analogue systems replaced by digital ones.

Key to protecting the UK’s cyber systems is the role GCHQ and the Ministry of Defence play and that includes adopting a cyber offensive approach. We all rely on cyber related equipment, none more so than the public sector and major private businesses and institutions. So it is essential that these concerns are acted upon (and financed properly), as going public with these concerns are not to be taken lightly.

Here is a link to my interview with BBC Radio Merseyside on this topic that is 39 minutes 27 seconds in

In February 2018 the Irish High Court will assess if Irish legislation governing the retention and access to telecommunications data is compatible with EU law. This will not be the first time a case regarding EU data protection law and the retention and access to telecommunications emanated from Ireland. The Irish campaign group Digital Rights Ireland brought a case to the Irish courts that ended up in the EU’s Court of Justice of the European Union (CJEU) where the compatibility of the EU’s Directive 2006/24/EC with EU law protecting privacy rights and protection of personal data was examined. Introduced following the terrorist attacks in Madrid 2004 and London 2005, the 2006 Directive laid down an obligation on publicly available electronic communications services or public communications networks to retain certain data generated or processed by them that would assist in investigating and prosecuting terrorism and serious crime cases.

In the case of Digital Rights (2014) the CJEU found the 2006 Directive would for a number of reasons (reasons underpinned by the 1995 Data Protection Directive 95/46/EC and articles 7, right to privacy, and 8, protection of personal data in the EU’s Charter of Fundamental Rights and Freedoms – CFRF) the 2006 Directive was invalid. Among those reasons it included that the retention of the data was indiscriminate, the grounds for limiting the rights were too broad and not sufficiently specific, there was a lack of judicial authorisation or scrutiny and there were insufficient safeguards protecting those rights.

In December 2016 the CJEU was again requested in the Tele2case to examine the compatibility of EU law protecting personal data, this time with the statutes in Sweden and the UK that were then covering the retention and access to telecommunications data linked to investigations into terrorism and serious crime. In Tele2 the CJEU also examined article 52 CFRF and the EU’s 2002 e-Privacy Directive 2002/58/EC. Both Sweden and the UK’s statutes were found to be incompatible with EU law and therefore invalid. In Tele2 the CJEU did recognise that fighting terrorism and serious crime was important enough to be an objective of general interest to limit citizens’ rights to protection of personal data but added:

‘…however fundamental it may be, it cannot itself justify that national legislation providing for the general interest and indiscriminate retention of all traffic and location data should be considered to be necessary for the purposes of that fight.’

The CJEU held that for the retention and access to telecommunications data to meet EU law requirements:

1. The limitation of the exercise of rights and freedoms must be provided for by law; and
2. The limitations must be subject to the principles of proportionality; and
3. The limitations must be necessary; and
4. The limitations must meet the general interest recognised by the EU.

It can be argued that in their judgement the CJEU’s guidance to both Member State legislators and state investigatory bodies, the CJEU itself has lacked being specific as to essential criteria necessary and must be present to ensure when the objectives of fighting crime and terrorism meet the limitations as to the grounds of general interest that justifies the lawful retention of telecommunications data. The same can be said regarding providing guidance on what grounds would justify necessity. Throughout the judgement in Tele2 the CJEU repeat that to be compatible with the principle of proportionality conditions laid down in national legislation must not exceed the limits to what is strictly necessary. On what is regarded as strictly necessary the CJEU state national legislation must be based on objective criteria defining the circumstances and conditions under which competent authorities can access the telecommunications data. The Court added, presumably as a guidance, that access can only be granted:

‘…in relation to the objective of fighting crime, only to the data of individuals suspected of planning, committing or having committed a serious crime or of being implicated in one way or another in such a crime.’

Adding:

‘[In] particular situations, where for example vital national security, defence or public security interests are threatened by terrorist activities, access to the data of other persons might also be granted where there is objective evidence from which it can be deduced that that data might, in a specific case, make an effective contribution to combating such activities.’ ([2016] All ER (D) 107, paragraph 119)

To ensure these conditions are fully met the CJEU held that as a general rule an authorisation to access and disclosure of telecommunications data be reviewed by either a court or an independent administrative body with the court or body’s decision being made following a reason request by the authorities that the purposes are for the prevention, detection or prosecution of crime. This echoed the CJEU’s decision in Digital Rights.

While prima facie the guidance provided by the CJEU in Tele2, seems clear and laudable, this guidance only applies to certain investigations into serious crime or terrorism, and would arguably be more pertinent to serious crime investigations rather than terrorism investigations. Understanding why the CJEU limits its guidance that at times seems at variance with national courts, especially those in Member States with a common law legal system like Ireland and the UK could be explained in the rules concerning statutory interpretation. In common law jurisdictions the courts apply one of three rules, the literal rule, the golden rule and the mischief rule. In essence the courts apply the literal rule where statutes are to be interpreted using the ordinary meaning of the language of the statute unless a statute explicitly defines some of its terms otherwise. In other words, the law is to read, word for word and should not divert from its true meaning. The golden rule applies where the courts see an application of the literal rule leading to an absurdity, then the courts may then apply a secondary meaning. The mischief rule should only be applied where there is ambiguity in the statute where under the mischief rule the court’s role is to suppress the mischief the Act is aimed at and advance the remedy.

However, these traditional statutory interpretation rules are not seen as applicable when interpreting national law with EU directives and considering the CJEU’s decision making. This could be due to virtually all of continental European states’ jurisdciaitons not having a common law legal system, with their courts’ role being solely statutory interpretation, which is what is seen with the CJEU. In these circumstances two methodological rules have been identified in CJEU case law, the interpretative priority rule and the presumption of compliance rule.

Regarding the interpretative priority rule, national courts must favour the interpretation of the national legislation which is the most consistent with the result sought by the directive. The aim here is to achieve an outcome compatible with the provisions of the directive that is consistent within all of the Member States. The presumption of compliance rule is a presumption that the national court intended to transpose the directive fully into national law with a court assuming that the national legislature intended to comply entirely with the requirements of the directive. The presumption of compliance rule can result in problematic consequences in the event the national legislation or the ruling by the national court contains inadvertent inconsistencies with EU law. This occurs where a specific objective of an enactment in national law contradicts the directive’s requirements as subsequently interpreted by the CJEU and there is no indication the national legislature realised the presence of the inconsistency.

Compared to national courts in common law jurisdictions who have traditionally been granted a much wider leverage in their statutory interpretation rules, the EU rules could be perceived as fettering the national court judges’ traditional decision making and limiting in relation to guidance provided in judgements regarding how EU law is applied. This is relevant not just to national legislatures, but also to agencies that particular EU law applies to. It is submitted that this is because common law jurisdictions are used to having both the ratio of the case and obitur dictum in their case reports where, in most cases, common law courts’ obitur is generally more extensive than that seen in case reports on European judgements. Accepting that obitur is not the decision only persuasive argument, a wider and more expansive obitur is also useful in guiding agencies’ actions when applying the law in circumstances that do not quite match those in the facts of a case report. As seen in both the CJEU’s decisions in Digital Rights and Tele2 the guidance provided is more limiting than that seen in Member States’ national courts with a common law legal system when interpreting non-EU national law. This may be due to the difficult task that in trying to harmonise EU law among 28 Member States and the variance of legal procedures among those states, the CJEU is trying not to be too prescriptive in its decision making that could result in either providing too wide or narrow an interpretation of EU law.

The impact these cases have had on EU Member States’ national law can be seen in the following. In response to the Digital Rights decision, the UK introduced the Data Retention and Investigatory Powers Act 2015 that required communications operators to retain telecommunications data up to a period not exceeding 12 months. It also allowed for authorisation of interception warrants to UK intelligence and policing agencies to access the communications data when necessary in the interests of national security, to prevent or detect serious crime or to safeguard the UK’s economic well-being. This was the UK statute that the CJEU in Tele2 found to be incompatible with EU law. In March 2015 a national Dutch court in The Hague followed the CJEU’s decision in Digital Rights and found Holland’s surveillance and data retention law fell under the EU law and the CFRF. As the Dutch law failed to conform adequately to articles 7 and 8 of the CFRF, along with the court also finding insufficient safeguards, the Court suspended the Dutch law.Applying the Digital Rights decision similar legal issues were found in the respective domestic statutory provisions regarding surveillance of communications post-Digital Rights by the respective judiciaries in Sweden, Romania and Belgium where their respective courts have held their legislation to be in breach of EU law. This raises the question of how can state bodies investigating terrorism and serious crime legally access telecommunications data?

Especially since the introduction of the e-Privacy Directive in 2002 we have seen the growth in forms of communication and the ways in which people carry out transactions from banking online, shopping online (including booking travel), send messages and speak to each other in various messaging services including Skype and FaceTime where people can converse while seeing each other. There are also encrypted messaging services that have been used by criminals and terrorists from Telegram to WhatsApp. Recently the likes of WhatsApp has been the preferred form of communication by criminals and terrorists as it is encrypted and apart from sending written messages, with this App individuals can send recorded voice messages to each other as well as pictorial images. Once cannot compare the technological wizardry that was the Nokia mobile phone to the i-Phones we have now that are in essence pocket sized computers. As such it is time the EU looked to introduce legislation that allows for internet and communications service providers to retain their telecommunications data for at least up to 12 months and allow state investigative bodies investigating acts of terrorism and serious crime access to that data. Since 2007 there have bee too many examples of how effective access to this data has been in the arrest and subsequent conviction of terrorists and those committing serious crime.

No doubt some reading this will have concerns over the state conducting widespread surveillance on its citizens and cite the US’ NSA and the Snowden revelations. In the protestations of the potential for state surveillance of telecommunication data an anomaly exists as many mobile phone and internet users do not appear to be so hesitant in passing on personal data, including sensitive data to private companies, including communications and internet service providers. In his book ‘Dawn of the New Everything: A Journey Through Virtual Reality’ the former Facebook president, Jaron Lanier says that based on the information individuals provide who they become friends with, what they buy and the news they consume is based on these providers’ algorithms adding that internet companies monitor their users’ habits and interests, which they feed into those companies’ algorithms. Yet, once the state agencies say it wants communications and internet service providers to retain their data in order to gain access to that data when the circumstances exist in relation to serious crime and terrorism, many individuals express a deep concern that the state is turning into a big brother state monitoring their every movement. This is not the case as many senior security service and police officers regularly state, the resources in both staffing levels and equipment are limited and as such both the security services and the police literally cannot monitor the electronic communications of every citizen, they can only target those who pose a threat to state security or who are involved in criminality.

The interests of national security and personal rights are not exclusive issues, but are inclusive and in today’s society we must all accept that state bodies investigating terrorism and organised crime must be able to have access to telecommunications data to deal effectively with terrorists and criminals. As such it is time the EU stopped paying lip service to this notion and fully recognised this by introducing legislation that allows this while effectively balancing citizens’ rights.

You can read more detail on these issues in my forthcoming book ‘Terrorism: law & Policy‘ and I am currently writing an article on this issue and the Irish Dwyer appeal case that will be published after the appeal hearing.

Khalid Masood (Westminster Bridge attack March 2017) – he was an MI5 subject of interest between Feb to Oct 2012and between 2012 – 2016 he was linked intermittently to Al Muhajiroun (a Salafist jihadist group linked to international terrorism that is proscribed in the UK). There was no intelligence indicating that he was planning an attack;

Salmen Abedi (Manchester Arena bombing May 2017) – he had a criminal record limited to theft related offences. He became a subject of interest for one day in Oct 2015 due to contacts he had with an Islamic state figure in Libya. In May Abedi was identified a person who needed further consideration with a meeting to consider him planned for the 3st May, nine days after the bombing. When Abedi returned to the UK from a trip to Libya on the 18th May he had not been flagged so no port stop under Schedule 7 Terrorism Act 2000 was carried out on his return. This is led to David Anderson saying that with hindsight the intelligence MI5 had on Abedi could, ‘…have been highly relevant to the planned attack’ but at the time it was received the intelligence was not fully appreciated by MI5 with David Anderson adding that if the ‘cards had fallen differently’ the attack could have been avoided;

Khuram Butt (London Bridge and Borough Market attack, June 2017) – he was known and was a principal subject in an MI5 investigation, Operation Hawthorn. He was known to be active in recruiting people to Islamic State (IS) and planning trips to IS’ self-proclaimed caliphate that existed in Syria. In mid-2015 intelligence was received that Butt aspired to carry out an attack in the UK but following risk assessments carried out, by Sept 2015 Butt was considered to have a strong intent but a weak capability to carry out the attack;

Darren Osbourne (Finsbury Park attack July 2017) – there was no intelligence held by either MI5 or the police that he was going to commit the attack.

Could more have been done?

Certainly in relation Abedi, if there were a handful of investigations ongoing in the UK then maybe there could be a greater degree of culpability on the part of MI5 and the police but this is not the case, something that David Anderson recognised. Currently in the UK there are approximately 500 ongoing investigations into 3,000 individuals, with 20,000 individuals in the intelligence system graded of serious concern. This is not counting individuals who are on a system but who have been assessed as a low threat. These figures alone reveal the enormity of the task facing the UK’s security services and police in preventing terrorist attacks from happening. As there is only limited resources in both staffing levels and equipment priority has to be given to what the analysis of the vast intelligence/information received that reveals where the greatest risk lies.
Following the 2005 London attack the key lesson learned was that intelligence must be shared between the security services and the police and the UK has developed a model of intelligence analysis with the introduction of bodies like the Joint Terrorism Analysis Centre (JTAC) where the intelligence is forwarded onto the relevant agency with the greatest capability for dealing with specific issues. It is model that has served the UK well in recent years as between 2005 and 2017 the only other main attack we witnessed was the killing of Fusilier Lee Rigby in 2013 and is model other states have wanted to emulate.
Of course some will say why has the UK sustained five major attacks (the attack in Parsons Green in September 2017 does not appear to have been part of the remit in David Anderson’s investigation)? The Manchester bombing was the most sophisticated attack that involved more individuals that just Abedi. One could arguably say the same for Parsons Green in relation to the bomb that fortunately failed to detonate fully on the Tube train, but lack of knowledge and inexperience existed in that attack. The other three were low level attacks carried out by driving vehicles into people and stabbing victims with knives. These are relatively easy to prepare and carry out, something we have tragically witnessed in other European states. Since March 2017 the UK’s security services and police have prevented nine attacks from taking place, twenty-two since the killing of Lee Rigby. At the time Amber Rudd was informing the UK Parliament on the findings in the Anderson report news also broke related to terrorism arrests. Two men, Rahman from London and Imran from Birmingham were appearing in court on the 6th Dec for allegedly plotting to kill the UK Prime Minister, both men were arrested on the 29th November 2017. Rashid from Lancashire (northwest England) who was arrested on the 22nd November 2017 was charged with offences of preparing acts of terrorism, will be appearing at Westminster Magistrates Court in London today.
Preventing terrorist attacks is a difficult task, but in the current climate it is virtually impossible to prevent all attacks from occurring. One should focus on what the UK security services and the police have achieved. Lessons will be learnt and it maybe that intelligence form other police sources could be shared such as neighbourhood officers who may have that vital piece of intelligence on individuals who may have been downgraded as a low priority that would make those countering terrorism look at them again.

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About David

David is a former police officer and former principal lecturer at Liverpool John Moores University’s Law School where he researched and lectured terrorism and security, and, criminal law. He has a many publications in books and journals in this area and is frequently used by the media for his expert commentary. David provides expert witness services to the police on terrorism law and terrorists’ use of tradecraft (counter-surveillance) and is currently involved in projects related to Prevent and Prepare strands of the UK government’s CONTEST programme.